Citation NR: 9709413
Decision Date: 03/20/97 Archive Date: 03/31/97
DOCKET NO. 95-00 553 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to a compensable evaluation for residuals of a
fracture of the great left toe.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Howard M. Scott, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans’ Appeals (BVA
or Board) on appeal from a March 1994 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Chicago, Illinois, which granted the veteran’s claim for
service connection for a fracture of the great left toe and
denied a compensable evaluation. The veteran who had active
service from August 1943 to November 1947 and from July 1948
to July 1952, appealed that decision to the BVA and the case
was referred to the Board for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that all of his current foot complaints
are due to the fracture of his great left toe in service. He
maintains that the current noncompensable evaluation does not
accurately reflect the severity of his disability.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports a 10
percent evaluation for fracture of the great left toe.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran's fracture of the great left toe is
manifested by symptoms of pain on weight bearing.
CONCLUSION OF LAW
The schedular criteria for a 10 percent evaluation for
fracture of the great left toe have been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.40-4.46,
4.71a, Diagnostic Code 5284 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board finds that the veteran's
claim is "well grounded" within the meaning of 38 U.S.C.A. §
5107(a) (West 1991). See Murphy v. Derwinski 1 Vet.App. 78,
81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990).
That is, the Board finds that the veteran has presented a
claim which is not
implausible when his contentions and the evidence of record
are viewed in the light most favorable to that claim. The
Board is also satisfied that all relevant facts have been
properly and sufficiently developed.
Service connection for fracture of the great left toe was
granted effective July 1993 and a noncompensable evaluation
assigned. This decision was based on service medical records
which noted that the veteran had fractured his great left toe
in 1944 and on a February 1994 VA examination which diagnosed
history of fractured base of left big toe with subjective
symptoms of pain on weight bearing Also diagnosed were
bilateral hallux valgus with hammertoes, left greater than
right, and bilateral pes planus, second degree on the right,
first degree on the left.
The VA examination report noted that the veteran’s fractured
great toe was treated in service by insertion of a pin and by
placing the foot in a cast. The examiner reported “he was
apparently OK and went for a second [tour of duty] and had no
problem at that time.” The veteran reported no problems
until at least 12 years after the fracture. His current
complaints were of moderate pain and fatigue in the left
foot, increasing with activity. His gait was noted to be
normal with no limp. He could stand and rise on his toes and
heels but he was unsteady standing on his left foot, could
not squat more than three quarters of the way down because of
painful pressure on the base of his big toe, and he was
unable to jog in place.
Disability evaluations are determined by comparing the
veteran's present symptomatology with the criteria set forth
in the VA’s Schedule for Rating Disabilities. 38 U.S.C.A.
§ 1155 (West 1991 & Supp. 1996); 38 C.F.R. Part 4 (1996).
Under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5284, a 10
percent evaluation is warranted for a moderate foot injury
and a 20 percent evaluation is warranted for a moderately
severe foot injury. Under DC 5283 a 10 percent evaluation is
warranted for moderate malunion or nonunion of the tarsal or
metatarsal bones and a 20 percent evaluation is warranted if
malunion or nonunion of the tarsal or metatarsal bones is
moderately severe.
The VA examination diagnosed bilateral pes planus and hallux
valgus with associated symptoms. These disorders have not
been shown to be due to the service-connected fracture of the
great left toe, and the only symptom associated with the
fracture of the great left toe was pain on weight bearing.
The U.S. Court of Veterans Appeals (Court) in DeLuca v.
Brown, 8 Vet.App. 202 (1995), citing Ferraro v. Derwinski, 1
Vet.App. 326 (1991), Schafrath v. Derwinski, 1 Vet.App. 589
(1991), and Quarles v. Derwinski, 3 Vet.App. 129 (1992), held
that a rating examination must consider the functional loss
of a part of the body due to pain on motion, fatigue,
incoordination, and weakness, as required by 38 C.F.R.
§§ 4.40, 4.45 (1995). In the judgment of the Board,
resolving all reasonable doubt in the veteran’s favor, the
veteran's complaints of pain on weight bearing shown and
reported on the VA examination warrant a 10 percent
evaluation for residuals of a fracture of the great left toe.
The Board finds, however, that the preponderance of the
evidence is against finding that the symptomatology
attributable to the veteran's fractured great toe alone, not
including symptomatology attributable to pes planus and
hallux valgus, is productive of more than a moderate foot
injury. Furthermore in view of the veteran's history that
following his toe fracture he recovered sufficiently to re-
enlist for an additional four years, the preponderance of the
evidence is against a 20 percent evaluation for residuals of
a fracture of the great left toe.
In reaching this decision, the Board has considered the
history of the veteran's disability, as well as the current
clinical manifestations and the effect this disability may
have on the earning capacity of the veteran. See 38 C.F.R.
§§ 4.1, 4.2, 4.41 (1996). The nature of the original
disability has been reviewed, as well as the functional
impairment which can be attributed to pain and weakness. See
38 C.F.R. § 4.40 (1996). The veteran's residuals of a
fracture of the great left toe are simply not impaired to a
degree to warrant a higher schedular evaluation under the
Schedule for Rating Disabilities.
The potential application of various provisions of Title 38
of the Code of Federal Regulations (1996) have been
considered whether or not they were raised by the veteran as
required by the holding of the United States Court of
Veterans Appeals in Schafrath v. Derwinski, 1 Vet.App. 589,
593 (1991). The Board would point out, however, that in
Floyd v. Brown, 9 Vet.App. 88 (1996), the Court held that the
Board does not have jurisdiction to award an extra-schedular
evaluation pursuant to the provisions of 38 C.F.R.
§ 3.321(b)(1) in the first instance. In the instant case,
however, there has been no assertion or showing that the
disability under consideration has caused marked interference
with employment, necessitated frequent periods of
hospitalization or otherwise renders impractible the
application of the regular schedular standards. In the
absence of such factors, the Board is not required to remand
this matter to the RO for the procedural actions outlined in
38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9
Vet.App. 237 (1996); Shipwash v. Brown, 8 Vet.App. 218, 227
(1995).
ORDER
Subject to the provisions governing the award of monetary
benefits, a 10 percent evaluation for residuals of a fracture
of the great left toe is granted.
RAYMOND F. FERNER
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -